At its meeting on 16 June 2005, the European Council decided to postpone its introduction of the European Constitution, originally planned to come into force on 1 November 2006. As the Treaty establishing a European Constitution could in principle only take effect if all the Member States agree, following the clear rejections in the French referendum on 29 May 2005 and the Dutch referendum on 1 June 2005 , the Member States needed a period of reflection, a search for (...) explanations and debate. The European Council did not feel that the date initially planned for a report on the ratification of the treaty was still tenable, since those countries which had not yet ratified the treaty would be unable to provide a clear reply before mid- 2007. But the process of ratification by the Member States was not abandoned. The timetable was adjusted to reflect the circumstances in the countries which had not yet ratified the treaty. This period was intended to regain the trust of the general public. (shrink)

The scope of European Union competence was central to the reform process that culminated in the Lisbon Treaty. The Lisbon Treaty competence provisions borrowed heavily from those in the Constitutional Treaty. Some provisions are contained in the Treaty on European Union (TEU), but the detailed schema is in the Treaty on the Functioning of the European Union (TFEU). Article 2 TFEU is the foundational provision, setting out the categories of competence and the consequences that (...) flow from them. Article 2(1) TFEU establishes the category of exclusive competence, which carries the consequence that only the Union can legislate and adopt legally binding acts. Article 2(2) TFEU defines shared competence. The treaty schema for competence in Article 2 TFEU is premised on the ascription of legal consequences for EU and member state power as the result of coming within a particular category. Article 5 TFEU is an exception in this respect. (shrink)

The paper offers a survey of the debate on the introduction, in the Preamble of the Treaty establishing a Constitution for Europe, of references to God and Europe’s Christian tradition. It examines the question of European identity and values which motivates these proposals in relation to (1) the nature of the EU as an essentially political construction; (2) the issue of human rights in the EU; (3) the protection of cultural and religious diversity within the EU. The study shows (...) that the confessionalization of Europe promoted by strong churches on the Continent, which are legitimate actors of civil society, betray a failure to understand the logic of the European construction. To the extent to which they represent an attempt to secure a privileged position with respect to other religious or non-religious actors, they run against the functional principles and values of the Union. (shrink)

The Schuman Plan was enthusiastically endorsed by the Benelux countries, France, Germany, and Italy, but the United Kingdom declined to participate, refusing to accept the supranational role of the projected High Authority. The treaty Establishing the European Coal and Steel Community (ECSC) was signed in Paris on 18 April 1951. The European Economic Community (EEC) has provided the core framework for the process of European integration. The Single European Act (SEA) also inserted into the EEC Treaty a number (...) of specific new legal bases for Community action. The treaty provisions were superseded by the Treaty on European Union (TEU), which provides the legal basis for the common foreign and security policy (CFSP). The Reform Treaty was to shed the form, language, and symbols of a European Constitution in favor of having another amending treaty, similar in nature to the SEA, Treaty of Amsterdam (TA), or Treaty of Nice (TN). (shrink)

This chapter examines the role of law in European Union (EU) external relations from two perspectives. First, it examines the EU as a rule‐based (international) actor Law and focuses mainly on EU law‐ governs both the extent of the European Union's external powers and their exercise, the constitutional foundations of EU external relations and the legal principles that govern external action. Second the chapter turns to the European Union's characteristic use of law as an instrument and objective of its (...) foreign policy, the European Union as a promoter of a rule‐based international order. The role of the Parliament in the conclusion of international treaties, which are often regulatory or quasi‐legislative in character, brings to the final theme of this contribution: the role played by law as both an instrument and a goal of EU foreign policy. (shrink)

The main purpose of the study is to analyze the feasibility and necessity of an EU Constitution. Briefly, the history of the draft constitution is as follows: The draft treaty aims to codify the two main treaties of the European Union - the Treaty of Rome of 1957 and the Treaty of Maastricht of 1992, as amended by the Treaty of Amsterdam (1997) and the Treaty of Nice (2001). The debate on the future of Europe (...) is believed to have begun with a speech by German Foreign Minister Joschka Fischer in Berlin in 2000. The process began after the Laeken Declaration, when the European Convention was set up, chaired by former French President Valerie Giscard d'Estaing, with the aim of drafting a constitution. The draft contract was published in July 2003. After lengthy discussions and debates over the proposal for qualified majority voting, the final text was approved in June 2004 and signed by representatives of the Member States on 29 October 2004. The failure of the treaty in France and the Netherlands is a serious blow to the European Union because these two countries are considered to be loyal supporters of the European project. The text of the treaty was subsequently rewritten by the Amato Group, officially the Active Committee on European Democracy (ACED), a group of high-ranking European politicians. During the German presidency of the Union, a new treaty was proposed - the Treaty of Lisbon - to replace the original draft of the Constitution. On 12 June 2008, the Lisbon Treaty was also rejected in a referendum in Ireland. But if we want to look beyond history, we can ask - Why does the EU need a Constitution and how can the Constitution be the roadmap to an advanced future for the EU? The answers to this question can be found by analyzing several directions (these are the main points of the article): historical reflexivity; socio-cultural analysis of the philosophical concepts of well-known political and social philosophers such as Immanuel Kant, John Locke; the modern constellation through the prism of Jürgen Habermas and the decision to make a text as a Constitution which its aim is to reach the starting point of an entire community like the EU. Keywords: constitution, EU, philosophy, law, John Locke, Immanuel Kant, Jurgen Habermas. (shrink)

The very idea of the draft European Union (EU) Constitutional Treaty was reexamined after the failed French and Dutch referendums and the Treaty of Lisbon (also known as the Reform Treaty) was drafted and entered into force on 1 December 2009 after it’s ratification by all 27 member states. The traditional notion of a Constitution as a national legal document establishing the social contract and a moral minimum for a particular socially unified group still prevails in (...) legal and political thinking. Indeed, the European Union has some constitutional elements, but absence of the so called ‘European demos’ prevents us from recognizing the founding treaties as a real ‘European constitution’ in the proper sense of the word. The author agrees with the decision to exclude the term ‘Constitution’ from the title and contents of the new Reform Treaty. The author also suggests that softer terms, like ‘European constitutional order’ and ‘European Constitutionalism’ might better reflect the scope of contemporary European integration than the term of ‘a Constitution for Europe’. A rethinking of the ‘constitutional core’ of the Lisbon Treaty was inspired following the so-called Lisbon judgments of Czech, Latvian and German constitutional courts. (shrink)

This chapter reexamines the case law of the Court of Justice of the European Union (CJEU) through the prism of the modern structure of the foundational treaties of the EU: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The Lisbon Treaty has reshaped the structure of the positive law of the EU, marking a new stage in the process of creating a closer union. For EU procedural law, this (...) has led to the formal establishment of three focal points which reflect the issues involved. At one extreme, are general principles of EU law, which have constitutional status including the general principle of effective judicial protection. In the middle of the spectrum are two provisions which recognize the balancing of national and EU interests required at the procedural level. Finally, the treaties recognize the possibility for substantive regulation at the EU level. (shrink)

This chapter presents an analysis of complex constitutional framework, examining institutional developments brought about by the Maastricht and Amsterdam Treaties and by focusing in particular on the major institutional changes brought about by the entry into force of the Lisbon Treaty. It illustrates how European integration in criminal matters has been organized over time. The chapter examines the extent of European Union (EU) competence to harmonize national legislation in the field of substantive criminal law and European integration in (...) criminal matters via the application of the principle of mutual recognition to criminal law and justice. It then explores harmonization of criminal procedure in order to facilitate the operation of mutual recognition and European integration via delegation, by an examination of the powers and interrelationship between various EU bodies and agencies in the field of criminal justice. The chapter describes the external dimension of EU action in criminal matters. (shrink)

This two-volume book, published open access, brings together leading scholars of constitutional law from twenty-nine European countries to revisit the role of national constitutions at a time when decision-making has increasingly shifted to the European and transnational level. It offers important insights into three areas. First, it explores how constitutions reflect the transfer of powers from domestic to European and global institutions. Secondly, it revisits substantive constitutional values, such as the protection of constitutional rights, the rule of (...) law, democratic participation and constitutional review, along with constitutional court judgments that tackle the protection of these rights and values in the transnational context, e.g. with regard to the Data Retention Directive, the European Arrest Warrant, the ESM Treaty, and EU and IMF austerity measures. The responsiveness of the ECJ regarding the above rights and values, along with the standard of protection, is also assessed. Thirdly, challenges in the context of global governance in relation to judicial review, democratic control and accountability are examined. On a broader level, the contributors were also invited to reflect on what has increasingly been described as the erosion or 'twilight' of constitutionalism, or a shift to a thin version of the rule of law, democracy and judicial review in the context of Europeanisation and globalisation processes. The national reports are complemented by a separately published comparative study, which identifies a number of broader trends and challenges that are shared across several Member States and warrant wider discussion. The research for this publication and the comparative study were carried out within the framework of the ERC-funded project 'The Role and Future of National Constitutions in European and Global Governance'. The book is aimed at scholars, researchers, judges and legal advisors working on the interface between national constitutional law and EU and transnational law. The extradition cases are also of interest to scholars and practitioners in the field of criminal law. Anneli Albi is Professor of European Law at the University of Kent, United Kingdom. Samo Bardutzky is Assistant Professor of Constitutional Law at the University of Ljubljana, Slovenia. (shrink)

In the post-Single European Act period, debates around European identity have intensified, particularly in the context of EU enlargement. The EU’s move to being a supranational political entity in the past two decades has caused serious concerns in some sections of the elite and people across the EU member states. While French and Dutch rejections of the constitutional treaty set an important milestone, Turkey’s quest for the EU membership has complicated to a great extent controversies on European identity. (...) The reviewed books here contribute to efforts to understand the extent to which European identity and Turkey’s bid for the EU membership has entangled. It is more likely to witness debates around both European identity and Turkey’s candidacy for the Union for many years to come; therefore, these books will more likely remain relevant for the academic and policy circles. (shrink)

The defeat of the Constitutional Treaty by French and Dutch voters in 2005 and the following stalemate of the Lisbon Treaty have sparked a soul-searching process for European constitutional scholarship. Among the numerous academic efforts devoted to contemplating the future of European constitution, Michelle Everson and Julia Eisner's The Making of a European Constitution: Judges and Law Beyond Constitutive Power deserves a close look. Everson and Eisner argue for a postconstituent view of European constitutionalization, which they (...) call ‘Rechtsverfassungsrecht’. Departing from the myth of the constituent power, they interpret the development of a European constitution as a self-creating process by which the ordinary legal system gives itself a set of core values and thereby remakes itself into a constitutional order. Moreover, against the criticisms of juridification, they defend this lawyer-centred process of European constitutionalization as incorporating politics into the daily operation of the legal system. Engaging with Everson and Eisner's argumentation, I argue that their account of European constitutional development does not so much put out a realist theory of the EU constitutionalization as sets out a realist academic lawyering for the next round of European constitutional politics, which is shared among European constitutional scholars. Contrasting this community-based legal profession in Europe with the situation of epistemic pluralism in American jurisprudence, in this article I observe that a lawyer-centred European constitutional theory as Everson and Eisner's book illustrates is premised on an inherited consensus that has held a European legal profession together. However, this lawyer-centred account of European constitutionalization presumes either the projection of a professional community onto a Europe-wide civic culture or the self-appointment of legal professionals as the fiduciary of the citizenry. Each is a fiction, however. This fictional character of the legalist-constructivist strategy to European constitutional politics is the underlying cause of the dilemma facing European constitutional ordering. (shrink)

The Lisbon Treaty’s ratification is complete. This article makes two related claims, one ethical, the other empirical. First, the EU should now be developed with the aim of making it a (more) just institution; and second, the amendments to the Treaties now introduced provide the constitutional inspiration so that the EU can so develop. In particular, there is a prospect for appropriate standards of justice to be applied in part through a revised philosophy of EU law. The article (...) argues that a human rights based approach to values, although not without its difficulties, provides the least divisive and most effective means of achieving this revision. (shrink)

This contribution aims to explain how European Criminal Law can be understood as constitutive of European identity. Instead of starting from European identity as a given, it provides a philosophical analysis of the construction of self-identity in relation to criminal law and legal tradition. The argument will be that the self-identity of those that share jurisdiction depends on and nourishes the legal tradition they adhere to and develop, while criminal jurisdiction is of crucial importance in this process of mutual constitution. (...) This analysis will be complemented with a discussion of the integration of the first and the third pillar as aimed for by the Constitutional Treaty, which would bring criminal law under majority rule and European democratic control. Attention will be paid to two ground breaking judgements of the European Court of Justice that seem to boil down to the fact that the Court actually manages to achieve some of the objectives of the CT even if this is not in force. This gives rise to a discussion of how the CT may transform European criminal law in the Union to EU criminal law of the Union, thus producing an identity of the Union next to the identities prevalent in the Union. The contribution concludes with some normative questions about the kind of European identity we should aim to establish, given the fact that such identity will arise with further integration of criminal law into the first pillar. (shrink)

Is the dream of EU endangered? This book reviews classic and modern values and virtues, and uses them in order to rethink Europe's present politics and its future. The idea of the Republic was born with the political ethics of ancient Greece. The current international crisis obliges Europe to face the mirror of truth: What has become of the European Idea and how fares the European Constitution? It has been a long road from the Greek Politeia to the present lack (...) of values and financial monomania in Europe, who seems to have lost any harmony between the spirit, the soul and the body of her Constitution: the will and values of the people (material constitution), the text of the Lisbon Treaty (formal constitution) and its current political interpretation and action (real constitution), making Europe a two-tier or three-tier club, far from the dream of the founding fathers. Without republican values and virtues, and failing to uphold the European social model, the European Union would devolve into moral, social and democratic bankruptcy. (shrink)

In this article, we explore why solidarity has not worked according to expectation in EU migration and asylum law and why it is unlikely to work in the future. First, we consider discourses of burden-sharing and solidarity in EU law from the 1990s up to the Lisbon Treaty in 2009 to identify emergent path dependencies. This period saw the introduction of primary law provisions on solidarity, such as Article 80 TFEU, as French and Dutch electorates had rejected a European (...) constitution. Second, we perform an analysis of Article 80 through the conceptual history of solidarity, in particular, the dominant Roman law tradition of obligation in solidum and the French tradition of solidarism. We submit that the term ‘solidarity’ is actually a misnomer: already on structural grounds, Article 80 should be read as an alliance clause, countering a threat of irregular immigration. Third, we find that the practice under Article 80 as it develops during the period between 2015 and the 2020 European Commission Pact on Migration and Asylum corroborates this finding. Overall, we find that the concept of solidarity in EU asylum and migration law engenders outcome expectations that it cannot deliver as the defence alliance it is. (shrink)

We construct novel measures to assess (i) the extent to which European Union member states are using common standards in recognizing asylum seekers and (ii) the extent to which the responsibilities for asylum applications, acceptances and refugee populations are equally shared among the member states, taking into account population size, gross domestic product (GDP) and GDP expressed in purchasing power parity (GDP-PPP). We track the progression of these measures since the implementation of the Treaty of Amsterdam (1999). These measures (...) display divergent trends and we try to provide an interpretation of the dynamics that are constitutive of these trends. (shrink)

We analyse and evaluate the qualified majority (QM) decision rule for the Council of Ministers of the EU adopted at the EU Inter-Governmental Conference, Brussels, 18 June 2004 [1]. We compare this rule with the QM rule prescribed in the Treaty of Nice, and the rule included in the original draft Constitution proposed by the European Convention in July 2003. We use a method similar to the one we used in [3] and [4].

The 2007 Treaty settlement represents an attempt by national leaders to banish the language of constitutionalism from the EU reform project for a generation. This book argues that the constitutional question cannot and should not disappear so easily. Examining the Union's constitutional past, and the prospects of constitutionalism providing a 'thicker' language of values for the future, the book provides a thorough analysis of the continuing role of constitutional thought in the EU's search for legitimacy as (...) the world's first post-state polity. (shrink)

Any abstract account of a field of law must make generalizations that are both faithful to the legal materials and appropriate to the subject matter's aims. The uniqueness and fluidity of the European Union's institutions makes such generalizations very difficult. A common theoretical approach to EU law (one that is often relied upon by the Court of Justice, the Parliament and the Commission) is to borrow directly from the theory of domestic constitutional law. The most recent manifestation of this (...) tendency is the draft Treaty on the European Constitution, which includes many of the symbolic features of a domestic constitutional order. But the European Union is not a state and the constitutional analogy is in many ways problematic. In this article I defend the view that a more complex theory is more appropriate to the unique combination of ordinary politics with diplomatic conferences that constitutes the European Union. The key to these institutions is, in my view, a Kantian international ideal of liberal peace. The foundational constitutional principles of the EU, principles that both fit the current legal framework and offer its most attractive interpretation, require the qualified autonomy of member states in a union of republics that create collective institutions for the purposes of liberal peace. (shrink)

We analyse and evaluate the qualified majority (QM) decision rules for the Council of Ministers of the EU that are included in the Draft Constitution for Europe proposed by the European Convention [5]. We use a method similar to the one we used in [9] for the QM prescriptions made in the Treaty of Nice.

The problems of the functioning of religion in the countries of the European Union are extremely complex and ambiguous. The EU is primarily political and economic. It is in these areas that active intra-integration processes are observed: introduction of a single currency, single payment system, actual “blurring” of borders between member states, development of the Constitutional Treaty, orientation towards the creation of a common market, a common transport network, harmonization of educational systems, etc.

This article provides an application of Alvin Gouldner's dialectic between Romanticism and Classicism to the constitutional process of European identity formation. Gouldner introduced his dialectical sociology in a critical attempt to destroy compulsive identification with any fixed idea of order. In an attempt to destroy compulsive identification with any Romantic or classical idea of Europe, this article shows how Europe's identity, as it has been represented in the Constitutional Treaty (CT), as well as in sociological works, is (...) being shaped by predominant Romantic and classic thought structures and social movements. The central argument is that the dialectic between Romanticism and Classicism in Europe is most clearly observed in the debates about democracy, human rights and rule of law — the classical values that constitute the EU's entry criteria. (shrink)

The European Council called for a period of reflection in each of the member states of the European Union (EU) after the people of France and the Netherlands rejected the Constitutional Treaty in referendums in 2005. The present article offers a contribution to this process by reflecting on the prospects for institutional design and redesign in the EU, a topic that became even more relevant after the Irish ?no? to the Lisbon Treaty in June 2008. The discussions (...) are based on a historical perspective, and the article discusses what lessons can be drawn from Jean Monnet, viewed as an institutional designer on the European stage. The article argues that the successful establishment of the European Coal and Steel Community (ECSC) was a product of a robust deontological design in a constitutional moment for Europe, and that prospective designers in the EU can learn important lessons from how Monnet identified and exploited available spaces for institutional design. (shrink)

Economic globalization has resulted in the transfer of national power to supranational actors and their supranational procedures and institutions. Concomitant with this trend is the ascendancy of the discourses of democracy and human rights that have given rise to the idea of cosmopolitan justice. These trends, in turn, have weakened statehood [ Entstaatlichung ], requiring theoretical envisioning and practical institutionalization of a supranational model of political association. Among the competing theories, in this article I will defend the Kantian project of (...) constitutionalization of international law. In doing so, I take the doctrine of constitutional patriotism as an appropriate model of supranational political association in the European Union and defend it against the republican critique that rejects the idea as deficient. I argue that the European project of constitution-making can overcome the charges of democratic deficit and the lack of European demos by establishing the terms and conditions for democratic negotiation and institutionalizing shared practices of law-making. Key Words: constitutional patriotism • democratic deficit • the European Union • nation-state • supranational political community. (shrink)

The article aims at resolving the issue whether the Court of Justice of the European Union (CJEU) has an exclusive jurisdiction under Article 344 of the Treaty on Functioning of the European Union (TFEU) to resolve disputes between Member States, stemming from provisions of an international treaty, a party to which is the EU. This problem is especially relevant in cases when a mixed international agreement envisages independent institutions of dispute resolution. The position of the CJEU is expressed (...) in the case of Mox Plant. The European Commission applied to the CJEU against Ireland, because it considered that Ireland, which started an arbitration procedure against United Kingdom under the UN Convention on the Law of the Sea, has infringed the exclusive jurisdiction of the CJEU under Article 344 of the TFEU. The EU is also a Contracting Party to the UN Convention on the Law of the Sea. Therefore according to the consistence case practice of the Court, the provisions of the Convention that fall under the competence of the Union constitute an indivisible part of the EU legal system. Only in such case when a provision of a treaty is attributed to exclusive competence of the Member States, the jurisdiction of the CJEU regarding that provision can be negated. Thus, when deciding on the issue of exclusive jurisdiction of the CJEU in principle, a problem of attribution of the EU and Member States’ competences arises. (shrink)

The COVID-19 pandemic has raised many intriguing questions both in the EU and globally, from the critical task of safeguarding lives to technical legal issues about competences to regulate health as well as the boundaries of emergency laws. This paper is interested in the connection between non-domination theory and the EU’s constitutional structure in the context of emergency laws. A key theme of the paper is that risk and emergencies are nothing new in an EU context, but concepts used (...) by the legislator in a wide range of policy areas which give rise to a number of constitutional challenges. The paper sketches out the main characteristics of non-domination and republication theory and addresses the question of how and why the notion of non-domination may be useful for understanding the EU constitutionalism venture in the framework of risk and emergency laws. (shrink)

This article argues that obligatory, simultaneous, and simple Treaty ratification by referenda is the next step in the consolidation of the political core of European citizenship. In the first part, general remarks about the special nature of EU citizenship highlight the relevance of referenda on EU Treaties for EU citizenship. In the second part, the normative and empirical case in favour of direct democracy is put forward. It is followed by the assessment of direct democracy in European integration as (...) we have known it so far. The practice is irreversible and gaining in momentum. But it is in need of substantial reform due to procedural dysfunctions and discriminatory consequences for the citizens. Section V relates this result to a legal analysis of EU citizenship. The suppression of the discriminatory consequences of the Treaty ratification procedure is necessary from a legal point of view, but it cannot be expected from the 'judicial incrementalism' that has characterised the development of EU citizenship regarding free movement and residence. In section VI, the conclusions of the previous sections are drawn into the final proposal of obligatory, simultaneous and simple Treaty reform by referenda in all Member States. At the end, five counter-arguments to the proposal are discussed. (shrink)

This chapter first outlines the general evolution of the European Union's (EU) decision‐making regime. The pattern of EU decision making has traditionally varied across policy fields to a degree that is unknown in the national constitutional law of its member states, where laws and administrative rules are usually made according to fairly standard procedures covering all policy areas. Such policy‐related variation has been a constant feature throughout the history of European integration. The chapter then examines EU legislative decision making, (...) and reviews administrative rule making by the EU institutions. The chapter then describes other relevant forms of decision making in the European Union. Finally, it shows how successive revisions of the European treaties such as Single European Act, Treaty of Maastricht, Treaty of Amsterdam, Treaty of Nice, and Treaty of Lisbon have incrementally modified the decision‐making regime of the European Union. (shrink)

This article aims to shed some light on the concepts embedded in the expressions ‘services of general interest’ (‘SGI’), ‘services of general economic interest’ (‘SGEI’), ‘non-economic services of general interest’ (‘NSGI’) and ‘social services of general interest’ (‘SSGI’). It is submitted that the expression ‘SGI’ conveys a general concept which comprises both SGEI and NSGI. SGEI may be distinguished from NSGI in that only the former involve an economic activity. In contrast to SGI, SGEI and NSGI, the expression ‘SSGI’ is (...) nowhere to be found in primary EU law. This means that it is for the EU legislator and, as the case may be, for the Member States to define such expression. Furthermore, this article supports the contention that a definition of the principles and conditions underpinning the operation of SGI must be capable of adapting to changing times and social perceptions, whilst being respectful of the vertical and horizontal allocation of powers set out in the Treaties. Vertically, a definition of SGI must not impinge upon the powers retained by the Member States. In the absence of harmonisation, it is for the Member States to define the services they consider to be of general interest, unless they commit a manifest error of assessment. In the presence of EU harmonising measures, the margin of discretion enjoyed by the Member States is, if still existent, narrowed down, given that national authorities are required to comply with the objectives pursued by the EU legislator. Horizontally, a definition of SGI must not encroach upon the prerogatives of the Commission in the realm of competition law. Moreover, in light of Article 9 TFEU and secondary EU legislation, the specific features of SSGI must be taken into consideration when determining the compatibility with EU State aid rules of public service compensation awarded to the providers of those services. An EU conceptual framework for the SGI must thus be the result of a constructive dialogue between the different levels of governance, as well as of a balanced solution among different policy areas in relation to which the EU enjoys competences. (shrink)

Governments in New Zealand have legislated a large number of settlements extinguishing many hundreds of claims taken by Māori against the Crown for breaches of the country’s founding document, Te Tiriti o Waitangi. They portray settlements as a great success for Māori and the Crown. Māori disagree. Settlements are government-determined and imposed on Māori using a smoke and mirrors approach that masks successive governments’ true intentions: to claw back Māori legal rights; to extinguish all claims; and to maintain White control (...) over Māori. In short, to uphold the Doctrine of Discovery in further breach of Te Tiriti o Waitangi. Māori claimants and negotiators report being enticed into the process by false promises only to become traumatised and disenchanted. Yet many take a pragmatic stance and sign settlements, making the best they can out of a bad deal that goes nowhere near compensating for their actual loss. They know that despite what legislation may say, the settlements are not full, not fair and not final and that, like all previous settlements, they will be revisited. They also know that unless fundamental changes are made to the constitutional makeup of the country, there is no prospect of justice and reconciliation for Māori. (shrink)

We analyse the projected future evolution of the distribution of voting power and related quantities under the qualified majority decision rule for the Council of Ministers of the EU, prescribed by the forthcoming EU Reform Treaty. Our projections are based on the demographic changes forecast by eurostat [4] for the period stretching from the present to the middle of the 21st Century. We use a method similar to the one we used in [6], [7], [8] and [9].

From the political point of view, European Union (EU) integration implies some kind of unity in the community constituted by EU citizens. Unity is difficult to attain if the diversity of citizens (and their nations) is to be respected. A thick bond that melts members' diversity into a 'European pot' is therefore out of the question. On the other hand, giving up unity altogether makes political integration impossible. Through a meta-theoretical analysis of normative positions, this paper proposes a composed notion (...) of European identity that links without binding. It contains four facets – cultural, political, social, external – with nuances, expressed in three binaries, that cut across all of them – history-project, ethos-achievement, commonness-uncommonness. I will submit that a workable European identity (and the related concepts of unity, polity and citizenship) can be better conceived as analogical – a mid way between blending unity and irreconcilable diversity. (shrink)

Andreas Follesdal,Victor Muñiz Fraticelli | : A Principle of Subsidiarity regulates the allocation and/or use of authority within a political order where authority is dispersed between a centre and various sub-units. Section 1 sketches the role of such principle of subsidiarity in the EU, and some of its significance in Canada. Section 2 presents some conceptions of subsidiarity that indicate the range of alternatives. Section 3 considers some areas where such conceptions might add value to constitutional and political deliberations (...) in Canada. Section 4 concludes with some reminders of crucial contested issues not fully resolved by appeals to subsidiarity alone, exemplified by the protection of human rights. | : Un principe de subsidiarité réglemente la répartition et/ou l’usage de l’autorité au sein d’un ordre politique où l’autorité est dispersée entre un centre et des sous-unités variées. La section 1 de cet article montre le rôle d’un tel principe de subsidiarité dans l’Union européenne, et certaines de ses implications au Canada. La section 2 présente des conceptions de la subsidiarité qui indiquent un éventail d’alternatives. La section 3 considère certains domaines où de telles conceptions pourraient ajouter de la valeur aux délibérations constitutionnelles et politiques au Canada. La section 4 conclut en rappelant certains problèmes cruciaux contestés, non entièrement résolus par les seuls appels à la subsidiarité, exemplifiés par la protection des droits humains. (shrink)

Debate over the place of Christianity in European politics and society has made an important come-back. The Convention on the Future of Europe’s deliberations over the EU Constitution has thrown into relief the role of religion in defining ‘Europeanness’. In the context of a secularized Europe, Christianity is fighting for its institutional recognition and space in the public sphere. Religion may offer a cultural identity and work both to resist and to accommodate change. However, the Christian mobilization has been challenged (...) by those who defend the secular order. The debate over whether Christianity should be seen as constitutive of European identity has been framed by wider concerns about collective identities and memories in Europe. (shrink)

The main subject of the present research is the enforcement of the European Union law in the domestic legal order. This topic was chosen considering the Treaty of Lisbon amending the Treaty on the European Union and the Treaty establishing the European Community and especially its declaration No. 17 on primacy of EU law. This article will explain the meaning of primacy of the European Union law and the resulting problems in some EU Member States, as well (...) as possible solutions to tackle the problems. The primacy of the European Union law over the national law was recognised as one of the constitutive principles of the European Union. The article includes relevant provisions of the Lisbon Treaty that deal with the rules concerning the legal requirements of the primacy of the European Union law in the EU primary law. The European Court of Justice has developed the meaning of the principle of primacy, which means that the European Union law should take precedence over national law (even over constitutional provisions) and should there be any conflicts between EU law and national law, every national court is obliged to apply the law of the European Union. The main issue of this article is analysing the principle of primacy of the European Union law over the Lithuanian law. (shrink)

The present essay focuses on problematizing the European Union's claim that intercultural dialogue constitutes an advocated method of talking through cultural boundaries—inside as well as outside the classroom—based on mutual empathy and non‐domination. More precisely, the aim is to analyze who is being constructed as counterparts of the intercultural dialogue through the discourse produced by the EU in policies on education, culture and intercultural dialogue. Within the Union, Europeans are portrayed as having an a priori historical existence, while the ones (...) excluded from this notion are evoked to demonstrate its difference in comparison to the European one. The results show that subjects not considered as Europeans serve as markers of the multicultural present of the space. Thus, intercultural dialogue seems to consolidate differences between European and Other—the ‘We’ and ‘Them’ in the dialogue—rather than, as in line with its purpose, bringing subjects together. (shrink)

The obligation to provide reasons may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank. On the other side lies the concern with (...) judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” and democratic experimentalism —this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review. (shrink)

In this article I want to consider whether the authority of the United States to enter into treaties in a global environment is limited by constitutional constraints. The issue arises because a reasonable interpretation of the language of Article VI would place the treaty power on the same status-footing as the Constitution of the United States. But if that is the case, then presumably a treaty might be designed that could delegate constitutional powers to bodies like (...) the United Nations, the North Atlantic Treaty Organization (“NATO”), the International Monetary Fund, the World Trade Organization (“WTO”), or other international organizations. Or, a treaty might be designed to reserve particular constitutional rights – like the Sixth Amendment right to trial by jury in criminal cases – from operating within certain contexts as might concern areas over which the United States exercises territorial jurisdiction, for example, Guam, Puerto Rico, and in other contexts where only international agreements apply. (shrink)

The European Union (EU) has developed a vast body of environmental law, relying on a treaty title setting out normatively and descriptively complex environmental principles and approaches, as well as on those parts of the treaties focusing on the internal market. This chapter provides some introductory insights into EU environmental law. It explores that the Industrial Emissions Directive (IED) shows the potential of an approach to governance that sets environmental norms in a collaborative, problem‐solving forum beyond the face of (...) legislation. The chapter shows harmonization is not a straightforward category in EU environmental law. Much was made of the decentralization and local or national flexibility in the predecessor to the IED. By comparison, the IED places greater emphasis on the mandatory application of EU‐wide environmental standards. However, both the initial decentralization and the recentralization are highly ambiguous. (shrink)

When, on December 7, 2000, the European Parliament, the Council and the Commission proclaimed solemnly in Nice the Charter of Fundamental Rights of the European Union, many thought that European integration was practically guaranteed and that the Charter would soon be made into a binding legal text. Since then, the two attempts to enact a European consitution - the Constitutional Treaty for the European Union of 2004 and the arguably less ambitious Treaty of Lisbon of 2007 - (...) both failed. Further efforts at unification have stagnated, in part due to the 2008 economic crisis and the European Union’s inability to coordinate responses to issues as serious as immigration, the refugee crisis, and terrorism. In this paper, I examine a theoretical counterpoint to that bleak perspective for European unification, to wit, Jürgen Habermas’ eurofederalist proposal of the postnational democracy and European constitutional patriotism. (shrink)